Articles Tagged with Personal Injury

Traffic fatalities in Georgia and across the United States have shown a significant decline between 2008 and 2009, according to a report released on Thursday by the U.S. Department of Transportation.

Georgia’s number of traffic fatalities in the period fell by 14 percent for a total of 1,495 in 2009. Florida led the nation with 422 fewer traffic fatalities in 2009, followed by Texas (405 fewer), California (353), Pennsylvania (212) and Georgia (211 fewer).

Increased seatbelt use and campaigns against drunk driving are being credited with the drop.

All manufacturers have a duty to warn consumers of dangers associated with the use of their products. An example of this would be drug manufacturers who dispense and promote the sale of prescription medication with known side effects. Warnings of these side effects must be provided to consumers so that they can make informed choices before they use such products. However, many different products in the marketplace have risks attendant with their use and consequently it is incumbent upon the manufacturer to warn the public and consumers of the products of dangers specifically known to be associated with such use.
We recently blogged about a case where a house fire was caused by a defective oxygen generating device which resulted in the death of three people. If the manufacturer of this product was aware of dangers associated with its use and/or if there had been other fires caused by the product, it may very well be that the product should have been recalled by the manufacturer. This is an example of where a manufacturer who is responsible not only gives warnings to the public but also takes prophylactic steps to remove a dangerous product from the marketplace. In cases where there have not been a sufficient number of incidents to result in a recall of a product, nonetheless, if a manufacturer is aware of dangers associated with its use, warnings should be given to the users to notify them of foreseeable dangers connected with the use of the product.
Many court opinions have held that the failure to warn by a manufacturer of known dangers associated with the use of the product can make the product in and of itself defective. Lack of warnings provided to a consumer deprives the consumer of intelligent choices particularly where the dangers are known to the manufacturer. A failure to warn in this context can render the product defective because a dangerous product which distributed to the public should contain warnings about know dangers associated with its use. A failure to do so can be a basis of strict liability under the law.

The Dram shop theory of liability is a legal doctrine which essentially holds that restaurants and lounges who serve noticeably intoxicated patrons with alcoholic beverages knowing that they are soon to drive can be held liable to third parties who are injured by such drunk drivers. Drunk driving is a major problem in this country and those vendors, including specifically restaurants and lounges, who serve visibly intoxicated patrons should be held legally liable for the damages inflicted by their customers. Responsible restaurant chains and lounges train their staff not to serve those who are noticeably intoxicated. Such establishments also train their staff never to serve those they know will soon be driving if they appear to be intoxicated from having consumed alcoholic beverages. Obviously, for such a policy to have any effect, the staff of these establishments must be sufficiently trained to recognize the signs and symptoms of someone becoming intoxicated.
Over the years, our firm has handled many cases involving Dram shop claims. These cases typically involve wrongful death actions where the drunk patron left the restaurant or lounge and ran over and killed someone on the way home, either by running over a pedestrian or colliding with a vehicle by running a red light or otherwise. In order to win these cases and help the family or the victim, who sometimes may be paralyzed or suffer a traumatic amputation or some other serious personal injury, it is necessary that there be a full, complete and immediate investigation to prove that the patron/drunk driver was noticeably intoxicated and that the establishment knew or had reason to know that there customer would soon be driving after having become noticeably intoxicated. Like any other serious legal claim, it is imperative that such investigation be conducted while the facts are fresh otherwise this type of claim can be lost due to a lack of available evidence.

Tire failures have caused the death or serious injury of many motorists in Georgia and across the nation over the years. There are many causes of tire failure but the Georgia injury lawyers at Finch McCranie, LLP know that one of the most common causes for tire failure is heat buildup. Heat buildup, especially in truck tires, usually results from under-inflation, overloading, high speed operation or a combination of these factors. A recent study by The National Highway Transportation Safety Administration (NHTSA) demonstrated that the top two types of damage for tire debris fragments found on the roadside were: road hazard (39%) and excessive heat (30%). Sometimes, tire failures occur because the tires being sold and used on a particular vehicle are not suitable for that vehicle or application.
Goodyear has faced numerous claims resulting from tire failures and vehicle accidents, many resulting in serious injury and death. As an example, Goodyear marketed their G159 tire to the RV industry for nearly a decade in the 1990’s and 2000’s, even though Goodyear knew it was dangerous to use that particular tire on those vehicles. The tire, originally designed for urban delivery trucks was speed rated for only 65 miles per hour, continuous use; however; in 1998 Goodyear increased the speed rating to 75 miles per hour, even though the tire design was prone to overheat on RV’s that typically travel at those speeds for extended periods. There are no doubt still plenty of Goodyear G159 tires in use on RV’s throughout the country which could fail causing catastrophic injuries. If you are a consumer and considering the purchase of replacement tires, it is crucial to make sure that the tires under consideration are matched to the vehicle or trailer that you intend to use them on.

Continue reading

We have read in the Atlanta newspapers this week about the tragic death of three people who died in a house fire in Palmetto, Georgia, which according to news reports was started by “an oxygen generating device that malfunctioned.” Although the news articles do not provide sufficient information to determine how this was concluded, the spokesperson quoted was from the State Insurance and Safety Fire Commissioner’s Office. It appears, therefore, that the tragic fire which resulted in the three wrongful deaths was caused by a malfunctioning product, which shorted out somehow and caused the blaze resulting in these three tragic deaths.
Our firm in the past has handled a similar wrongful death case where a young boy died in a house fire also caused by a malfunctioning product. In that case, the product was also an oxygen generating device that had malfunctioned due to a short in it. The device caught fire and the young boy could not escape his room before being killed. In that particular case, the young boy also suffered from disabilities which made it difficult for him to escape the fire once it started. (As we read the article currently being circulated in the Atlanta area, at least one, if not more, of the three people killed in the fire which occurred in Palmetto, Georgia were also apparently disabled.)
These cases are very difficult to prove because many times the fire destroys the evidence. It appears that the Insurance and Safety Fire Commissioner’s Office did a good investigation of this case because they may have preserved the malfunctioning unit. In the referenced case we handled, the malfunctioning unit was not fully preserved but enough parts of it were such that they could be examined by experts. In that case, it turned out that the product was known to malfunction by the manufacturer and had actually been recalled some several months before the incident due to its dangerous propensities.

Continue reading

Georgia has an “equitable apportionment” statute which essentially states that either parent of a deceased child, when divorced, separated or living apart, may file a lawsuit for the wrongful death of their child, notwithstanding the divorce or separation. In such a case, the parent that brings the wrongful death case does so in a fiduciary capacity proceeding not only on their on behalf but also on behalf of the divorced/separated spouse who obviously also has a legal interest in the death of their child.
Where divorced parents get along well even after the divorce, they may sue jointly. The difficulty comes where the parents do not get along and one proceeds before the other. Sometimes the other parent has to move to intervene in a lawsuit to protect their interests because they do not trust their spouse. Under Georgia law, even in such cases where neither spouse trusts the other, the fact is that the law provides that one spouse that proceeds in a divorce/separation situation for the wrongful death of a child, nonetheless, proceeds jointly on behalf of their divorces spouse.
In the event there is a recovery for the wrongful death of a child in the situation where the parents are divorced, the law provides for an “equitable apportionment” of any recovery between the divorced parents. A court will decide who gave the most child support, on whom did the child depend for support and issues of a similar nature in determining which parent equitably should receive the largest portion of the wrongful death award, if any. If a parent has abandoned their child, paid no child support, had nothing to do with the child, most courts would not award such a parent anything from the recovery although the court would be authorized to award whatever it deemed to be in the interest of justice based on the facts and circumstances. In most cases the courts would probably plan to divide the proceeds on a 50/50 basis unless there was clear evidence that one spouse had abandoned the child, was abusive to the child, did not pay child support or was not involved in the child’s life. In such circumstances, the spouse that did the most for the child and was the closest to the child would probably receive most, if not all of the award although, once again, the court would be required to equitably apportion the damages based on its own assessment of the equities involved.

Continue reading

In Georgia, as a general rule, punitive damages are not allowed in a wrongful death action. Commentary in various legal decisions have indicated that because damages in a wrongful death are somewhat punitive by nature that an award of additional punitive damages would be inappropriate. While punitive damages may not be collected in a wrongful death action per se, nonetheless, because of the unique provisions of Georgia law which confer upon the personal representative the right to bring a claim for property damage and/or any conscious pain and suffering experienced by the decedent prior to death, where there is evidence of either property damage or conscious pain and suffering prior to death, punitive damages may be awarded.
In any wrongful death case where the decedent has experienced conscious pain and suffering counsel should have a personal representative appointed not only to seek compensation for such conscious pain and suffering but also for burial, funeral and related medical expenses. If the circumstances of the case warrant it, punitive damages may be recovered if aggravating circumstances are involved in the underlying liability claim. For example, if a drunk driver kills someone, obviously, punitive damages would be appropriate in such a case. However, under Georgia law, unless the decedent experienced conscious pain and suffering prior to death or there was property damage suffered by the decedent, a claim for punitive damages may not be brought by the personal representative. Again, such a claim can only be brought by the personal representative and cannot be brought by the heir-at-law in the wrongful death claim but only in the estate’s claim for the specified damages.

In a wrongful death action, as indicated in other entries, juries in Georgia are permitted to award both economic and non-economic damages for the “full value of the life of the decedent.” We have written before about the intangible elements of the non-economic damages and the calculations that one would argue to a jury that would be appropriate in establishing lost wages over the earning lifetime of the decedent.
In calculating damages for the full value of the life of the decedent, obviously, every case is different as every individual is unique. You may have a high wage earner, you may have a housewife or child, or an elderly person. The facts in each case are different. However, once the jury decides what fair compensation should be awarded for the non-economic components of the claim, then the jury may calculate the economic damages to come up with a total award. One point to be made here is that only economic damages can be reduced to their present cash value because the money is being awarded today as opposed to having to wait over the expected lifetime of the decedent to recover the same. Non-economic damages, or the intangible elements of a wrongful death claim, however, are never reduced to present cash value.
As indicated in other entries, when a jury awards an amount for the full value of the life of the decedent, it must do so “without deduction of any necessary or other expenses, had he or she lived.” While a jury will be instructed to reduce economic damages to their present cash value again, in most wrongful death claims, the non-economic component of the claim, that being the intangible aspect of the loss of life from the standpoint of the decedent, is the more valuable claim, which hopefully will provide fair compensation for the survivors bring the claim. Counsel must educate the jury that non-economic damages should never be reduced to their present cash value in calculating damages in a wrongful death case.

Georgia injury lawyers have seen many serious automobile accidents, tractor-trailer accidents and motorcycle accidents caused by foreign objects and road debris on Georgia highways. Not a week goes by that we do not see a significant amount of road debris laying in the middle of Atlanta highways. Just last week a 19 year old girl was killed in Tifton, Georgia when she collided with a tractor-trailer. Both vehicles were heading south on Interstate 75 when the girl swerved to avoid a piece of rubber in the roadway. After running off the roadway, she apparently over-corrected, came back onto the roadway and struck the tractor-trailer rig.
In October of 2008, a woman, trying to avoid road debris, died instantly in a single car crash. The accident happened at about 7:30 a.m. in the westbound lane of Interstate 285 in north Atlanta, Georgia. The victim tried to avoid a truck bed-liner in the highway when she hit a median wall.
In July of 2010, a Canadian woman died when a brake drum broke free from a large commercial truck was struck by the wheel of a tractor trailer and thrown into the air and through the woman’s windshield, striking her in the head.
On June 30, 2010, a Florida woman was killed after a portion of a portable toilet crashed through her car’s windshield. The two portable toilets fail from the trailer of a pickup truck. When they hit the ground and broke apart, a portion of one of them crashed through the woman’s windshield striking her. As a result, the woman veered off the road and crashed into a tree.
There are ever increasing numbers of these accidents which are claiming the lives of many motorists. Failure to secure a load being transported by car, tractor-trailer or any other vehicle is negligence for which you may be liable in damages. Trying to identify the person or corporation responsible for foreign objects being in the roadway is not always very easy.

Continue reading

Under Georgia law, there is a statutory Annuity Mortality Table which was passed into law in 1949. This table is commonly referred to by Georgia lawyers as “The Annuity Mortality Table 1949 Ultimate.” The figures in this table have been used for years in wrongful death actions and are still relied upon by juries today in assessing damages. Essentially, the Mortality Table shows that if a person has lived to a certain age that it is likely they will live a certain additional number of years based on Annuity Mortality studies which resulted in the statutory Tables. For example, someone who has lived to age 40 will live an approximate say 35.15 more years if he is a male and 40.11 years if she is a female. In other words, the table sets forth the life expectancy of the decedent. These tables can be effectively used in a wrongful death action in establishing the “full value of the life” of the decedent, not only with respect to economic damages but also non-economic damages. With respect to economic damages, if it is established, for example, under the terms of the Annuity Mortality Table, that the decedent would have worked an additional 25 years (up until age 70) before he or she retired and then an additional 10 years based on their life expectancy, then counsel may argue that the jury should award 25 years of earnings at an average rate of what the decedent showed they were capable of earning, the same 25 years for “non-economic damages” (enjoyment of life) plus an additional 10 years while living in retirement for the “non-economic damages” suffered by the decedent. While counsel are not restricted to using an Annuity Mortality Table in any case, and can utilize the services of an economist who can extrapolate such figures from the evidence introduced at trial, nonetheless, the Annuity Mortality Table 1949 Ultimate is a good piece of evidence to use in Georgia to help the jury understand the magnitude of a wrongful death claim and how they should go about calculating damages projected over many years.
Life expectancy as shown by the Mortality Tables is merely an estimate of the average remaining life of anyone in Georgia. Such tables while not binding on a jury are nonetheless useful guides in helping to demonstrate the likely life expectancy of the decedent. While such figures are obviously not relevant if the decedent was suffering from cancer, for example, or had a family history of heart disease or diabetes or other diseases which could shorten the life expectancy, for someone who dies with no serious health consequences, the Annuity Mortality Table 1949 Ultimate is a significant piece of evidence which can be used by experienced counsel in demonstrating the extent of one’s economic and non-economic damages in a wrongful death case in Georgia.